Michael Amm, Michael Pickersgill and John Terry Comment on CSR Strategy and Regulation in The Lawyers Weekly

Reworked extraction field policy unveiled

As Canadian regulation puts increasing emphasis on corporate social responsibility (CSR), companies across industries and sectors are looking at a range of guidelines and best practices to help steer their compliance with evolving policy. Partners Michael Amm, Michael Pickersgill, and John Terry, provided insight into the issue for an article in The Lawyers Weekly. An excerpt of the article is below.

CSR is difficult to regulate, noted Michael Amm, co-head of the mining and metals group at Torys LLP. It’s a catch-all phrase that emphasizes avoiding harm such as forcing people off their land or environmental pollution, and extends to performing good acts such as resorting to local procurement and helping local communities.

“It’s a very broad spectrum,” said Amm. “The (federal) government can’t possibly seek to regulate all aspects. They are trying to simply set up a forum and processes to deal with the more problematic liability-type aspects.”

The new CSR policy implicitly recognizes that the original strategy was ineffective, say legal observers. The original CSR policy was introduced in 2009 following the near-passage of private members’ Bill C-300, which would have mandated the removal of federal financial support for any Canadian extractive company found to have violated CSR guidelines, including a refusal to meaningfully participate in a non-judicial CSR dispute resolution mediation. Facing industry opposition, the federal government in its place created an office of the extractive CSR to provide advice and guidance to stakeholders, and carry out reviews and dispute resolutions respecting the foreign operations of Canadian companies. The federal government also committed to a five-year review, which prompted the new changes.

“The federal government is trying to beef up the CSR counsellor’s role by having matters referred to the NCP, which is seen as a more robust way to deal with CSR issues,” said John Terry, a civil litigator who practises international trade and investment law at Torys LLP.

Extractive companies will not be expected to follow all of the six international guidelines, noted Michael Pickersgill, co-head of Torys’ mining and metals practice. Rather, they will be expected to comb through the various guidelines and combine the different principles into something that fits their circumstances, the jurisdiction they are operating in, the nature of their operations and the communities affected by their operations, added Pickersgill.

“Some companies given the nature of their business may have more reason to look at the principles carefully,” said Pickersgill. “For some, it may be environmental principles. Other companies may be looking at labour and human rights principles. They are all important but they are going to have a level of relevance that may differ from company to company.”